Citation Nr: 9807452
Decision Date: 03/13/98 Archive Date: 03/25/98
DOCKET NO. 95-39 871 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in San Juan,
Puerto Rico
THE ISSUE
Entitlement to an increased disability rating for service-
connected psychiatric disorder, including post-traumatic
stress disorder (PTSD), currently evaluated as 30 percent
disabling.
REPRESENTATION
Appellant represented by: Puerto Rico Public Advocate
for Veterans Affairs
ATTORNEY FOR THE BOARD
C. Allen, Associate Counsel
INTRODUCTION
The veteran served on active duty from May 1948 to October
1953.
This matter comes before the Board of Veterans’ Appeals
(Board) from a March 1994 rating decision of the Department
of Veteran Affairs (VA) Regional Office (RO) in San Juan,
Puerto Rico, which denied the veteran’s claim seeking an
increased disability rating for his service-connected
psychiatric disorder.
In the March 1994 rating decision, the RO also denied claims
by the veteran of entitlement to service connection for
avitaminosis, beriberi, and disorders of the eyes and tongue.
In the veteran’s April 1995 notice of disagreement, he
expressed disagreement with the RO’s decision in regards to
his claims for service connection for “weight loss,
gastrointestinal disorder, and malnutrition;” however, no
statement of the case pertaining to these issues was issued
to him. This matter is referred to the RO for proper action.
REMAND
The veteran contends, in essence, that his service-connected
psychiatric disorder, warrants a disability rating in excess
of 30 percent. He asserts that, because of symptomatology
attributable to this disability, he is not able to work
consistently, that he has flashbacks, and that he is not able
to get along with supervisors and fellow employees. He
believes that his ability to maintain effective, favorable
relationships with people is severely impaired. Overall, he
feels that he is severely disabled due to his PTSD and that
an increased rating for his disability is warranted.
Review of the service medical records indicates that the
veteran entered active duty with a psychiatric status noted
as “normal” on a May 1948 report of medical examination.
However, a September 1953 report of medical examination
indicates that the veteran was a prisoner of war during the
Korean conflict for over three years, from July 1950 to
August 1953. An associated psychiatric evaluation reflects
that the veteran seemed confident and secure and was of
average intelligence, but also shows that the veteran was
interrogated and was put on a forced march during his time as
a prisoner of war. A diagnosis of “POW reaction, moderate”
was provided. A September 1955 VA examination report
indicates a diagnosis of “anxiety reaction” of “minimal”
incapacitation. Based on the above, the veteran was granted
service connection for “anxiety reaction” in an October
1955 RO decision; a 10 percent evaluation was assigned.
The veteran sought an increased rating in July 1988,
contending that his psychiatric disorder had worsened.
Medical evidence at that time, consisting of a VA examination
report and outpatient records, shows that he was seen with
complaints of insomnia, persecutory ideation, and depression.
It was noted, as service history, that he was captured by the
enemy during the Korean conflict, and that he endured
beatings, intimidation, brainwashing, and other torture.
Mental status evaluation revealed that his combat experiences
have “interfered significantly” with his industrial and
family life. It was noted that the veteran preferred to be
alone and had “poor” social interaction. He had feelings
of uselessness, suicidal ideation, and low self-esteem. A
diagnosis of “adjustment disorder [with] depressed mood”
was made. In light of the above, the veteran was granted a
30 percent disability rating for his psychiatric disorder by
the RO in a March 1989 rating decision.
The most recent medical evidence is a January 1994 VA
examination report. It shows that the veteran was seen by a
panel of three psychiatrists. Objective findings showed that
the veteran was cooperative, relevant, and coherent, but
chronically depressed. He had no thought or perceptive
disorders and no looseness of association. Judgment was not
impaired. A diagnosis of “dysthymia” and “post traumatic
stress disorder” was provided. He was noted to have a
“fair” level of adaptive functioning, but no Global
Assessment of Functioning (GAF) score was provided. Based on
the above, the veteran was denied an increased disability
rating for his psychiatric disorder by the RO in a March 1994
decision, from which he appealed. This forms the basis of
the current appellate review.
The VA has a duty to assist the veteran once his claim is
found to be well-grounded. 38 U.S.C.A. § 5107(a) (West
1991). A well-grounded claim is one which is meritorious on
its own or capable of substantiation. It need not be
conclusive, but only plausible. Murphy v. Derwinski, 1 Vet.
App. 78 (1990). The veteran's claim for an increased rating
in this case is shown to be well grounded. See Proscelle v.
Derwinski, 2 Vet. App. 629, 632 (1992) (where a veteran
asserted that his condition had worsened since the last time
his claim for an increased disability evaluation for a
service-connected disorder had been considered by VA, he
established a well-grounded claim for an increased rating).
The Board notes that the diagnostic codes and provisions
relating to mental disorders, including PTSD, were amended,
effective November 7, 1996. 38 C.F.R. §§ 4.125 through 4.130
(1997); 61 Fed.Reg. 52695-52702 (Oct. 8, 1996). The United
States Court of Veterans Appeals has held that, where the law
or regulation changes after a claim has been filed or
reopened but before the administrative or judicial appeal
process has been concluded, the version most favorable to the
appellant will apply unless Congress provided otherwise or
permitted the Secretary of the VA to do otherwise and the
Secretary did so. Karnas v. Derwinski, 1 Vet. App. 308, 313
(1991). Because Congress has not provided otherwise in this
particular instance, the Board concludes that the veteran
should be afforded the opportunity to undergo a new
examination and, then, to have his claim reviewed under the
most favorable of the applicable rating criteria. Karnas,
supra.
The Board is aware that the veteran has been apprised of the
amended regulations pertaining to mental disorders; these
were outlined in a January 1998 supplemental statement of the
case. However, the Board also notes that the veteran has not
undergone VA psychiatric examination in over 4 years.
Moreover, that examination, as the veteran pointed out in his
statements in support of his claim, failed to provide a GAF
score for his service-connected psychiatric level of
functioning.
Because his claim is well grounded, the VA has the duty to
assist the veteran with his claim, including assuring him of
due process. In this case, due process considerations
require the remand of this claim for additional medical
development and for adjudication of his claim under the
amended regulations.
Accordingly, to ensure full compliance with due process
requirements, the case is REMANDED to the RO for the
following development:
1. The veteran should be requested to
identify all sources of recent treatment
received for his service-connected
dysthymia and PTSD, and to furnish signed
authorizations for release to the VA of
private medical records in connection
with each non-VA source he identifies.
Copies of the medical records from all
sources he identifies, including VA
records, (not already in the claims
folder) should then be requested. All
records obtained should be added to the
claims folder.
2. The veteran should be afforded a
special VA psychiatric examination to
determine the degree of severity of his
service-connected dysthymia and PTSD.
The claims folder must be made available
to the examiner prior to the examination
so that he or she may review pertinent
aspects of the veteran’s history. All
clinical findings should be reported in
detail. Such tests as the examining
physician deems necessary should be
performed. The examiner should identify
diagnostically all symptoms and clinical
findings which are manifestations of the
service-connected dysthymia and PTSD, and
render an opinion for the record as to
the degree to which those specific
symptoms and findings affect the
veteran’s ability to establish and
maintain effective and favorable
relationships with people (social
impairment), and the degree to which they
affect his reliability, productivity,
flexibility, and efficiency levels in
performing occupational tasks (industrial
impairment). See Massey v. Brown, 7 Vet.
App. 204 (1994). The examiner must be
furnished a copy of the revised VA
General Rating Formula for Mental
Disorders (38 C.F.R. § 4.130, effective
November 7, 1996) and the old criteria
and, on examination of the veteran,
comment on the presence or absence of
each symptom and clinical finding
specified therein, and if present, the
degree(s) of severity thereof. Based
upon a review of the record and the
examination, the examiner should provide
a Global Assessment of Functioning Score
(GAF) provided in the Diagnostic and
Statistical Manual for Mental
Disabilities, indicating the level of
impairment produced by the service-
connected dysthymia and PTSD. It is
imperative that the examiner also provide
a definition of the GAF score for
purposes of due process under Thurber v.
Brown, 5 Vet. App. 119 (1993). To this
end, the examiner should render an
opinion whether the service-connected
dysthymia and PTSD prevent employment.
3. After the above actions have been
completed, the RO should readjudicate the
veteran’s claim for an increased rating
for a psychiatric disorder, including
PTSD, pursuant to the new and old rating
schedule criteria with consideration of
Karnas, supra.
4. If the determination remains
unfavorable to the veteran in any way, he
and his representative should be
furnished a supplemental statement of the
case in accordance with 38 U.S.C.A.
§ 7105 (West 1991), which includes a
summary of additional evidence submitted,
any additional applicable laws and
regulations, including the revised VA
General Rating Formula for Mental
Disorders (38 C.F.R. § 4.130, effective
November 7, 1996). This document should
include detailed reasons and bases for
the decisions reached. The veteran and
his representative should be afforded the
opportunity to respond thereto.
Thereafter, subject to current appellate procedures, the case
should be returned to the Board for further appellate
consideration. The Board intimates no opinion, either legal
or factual, as to the ultimate disposition warranted in this
case, pending completion of the requested adjudication. The
purpose of this REMAND is to accord due process. The veteran
needs to take no action until so informed.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans’ Appeals or by the United States Court of
Veterans Appeals for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans’ Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1997) (Historical and Statutory Notes).
In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
A. BRYANT
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1996).
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